Free speech: What went wrong

Around half a century ago, freedom of speech went from being primarily a left-wing cause to primarily a right-wing cause. That bald statement conceals an ocean of complexity; the transition was neither sharp nor complete and many exceptions could be produced, but it was nonetheless real.

As a result, it has mostly been parties and pressure groups on the left, in Australia and other western countries, who have taken the lead in recent times in promoting “hate speech” laws: that is, laws that penalise speech that, while falling short of direct incitement to violence, targets a particular group. Such provisions might include words like “offend, insult, humiliate or intimidate,” as found in the famous section 18C of the commonwealth Racial Discrimination Act.

The effect of these laws has been negligible. As each generation apparently has to learn (or not learn) for itself, you can’t magically endow the state with whatever characteristics you like. You can pass laws that say they are to protect the marginalised, but government doesn’t in fact work that way: it works, most of the time, in the interests of the rich and powerful. Often these laws come to be used against the very groups that demanded them.

Hate speech laws have conspicuously failed to prevent the rise of powerful far-right and anti-immigrant movements in Europe – indeed, those movements have progressed in very much the same way as they have in the United States, which has no such laws. Similar laws equally failed to prevent the rise of fascism in the 1930s. Nor is this at all surprising: racist demagogues treat any action against them as a badge of honor, giving them an air of martyrdom, and police and prosecutors (perhaps realising this) tend to ignore the big fish and go after trivial offenders, which further discredits the laws.

But faithful to the ancient political syllogism (we must do something; this is something; therefore we must do this), politicians keep resorting to new laws penalising speech to counter reprehensible acts. No surprise, then, that Australia’s centre-left government produced an omnibus hate speech bill as its response to the December massacre at Bondi Beach – even though, if laws were always effective there would be no problem, since massacring people is already illegal.

The twist in this particular tale, though, is that the government was pushed to act by pressure from its right. The opposition, torn by its own internal problems and beset (as we noted yesterday) by rivals on the far right, seized on the massacre as a stick with which to beat the government, demanding a royal commission, the recall of parliament and the abandonment of any residual sympathy the government might have been showing for the Palestinians.

What made the opposition so keen this time on limiting free speech was the position of the Jewish community, the target of the massacre. A generation ago it, like most ethnic or religious minority groups, tended to be on the left, so its support then for hate speech legislation was unremarkable. These days, however, the peak organisations of that community, which are mostly strongly pro-Israel, line up on the right and have become an important part of the hard right ecosystem. But they have never dropped their belief in laws that would, they think, protect them against abuse or vilification.

At the same time, many actors (both Jewish and non-Jewish) on the right were quite keen on racial vilification of Muslims and/or Palestinians, so drafting a suitable law was never going to be easy. But this is one of the advantages of being in opposition: you can demand contradictory remedies and then attack the government for failing to do the impossible.

After resisting for a couple of weeks the Albanese government capitulated, announcing that there would be a royal commission and that also, instead of waiting to see what measures it might recommend, the Combatting Antisemitism, Hate and Extremism Bill would be presented to parliament. Trying to outdo the opposition in politicising the issue, it scheduled only a few days for discussion of a 144-page bill that tied together hate speech, banning of organisations, gun control, immigration measures and more.

I remarked a few months ago, in relation to the Segal report on antisemitism, on the way in which the previous champions of free speech on the right had gone rather quiet. But the government’s scattergun approach brought them back to life, with a chorus of disapproval for the breadth and vagueness of the proposed legislation. Tim Wilson, whom many will remember from the section 18C debates, was particularly thorough in his criticisms.

Of course it was disingenuous in the extreme for the opposition to attack the government for rushing its legislation, given that it had pushed it into precipitate action in the first place. Nonetheless, the critics were basically right, and the government’s hopes of passing an omnibus bill this week were quickly dashed. So it compromised: the gun control and hate speech measures were divided into separate bills, and the latter was toned down by the omission of provisions that would have outlawed the mere “promotion” of racial hatred.

Both bills are expected to be passed today: the Greens will support the gun control bill and the opposition will support the hate speech bill, ensuring them passage through the Senate. They will join the dozens of other anti-terrorism provisions passed this century that still clutter up the statute book, none of which seem to have made any appreciable contribution to making us safer. As Michael Bradley puts it, “This is not law-making; it’s performance art.”

Each side bears some responsibility for this deeply unsatisfactory state of affairs. Our only consolation is that if either on its own had had its way, it probably would have been even worse.